California Makes a Bad New/Old Law

Lesp bkgd lady justice

I’ve voted two times against giving people who rape children the death penalty.

I authored a bill to put them in prison for life without parole.

That pretty much sums up my attitude toward people who sexually abuse children. I don’t want to kill them, but to say I have no use for them is an understatement.

I’ve also written several times about the clergy sex abuse scandal in the Catholic Church.

I point to all these things now in hopes of forestalling what I am guessing will be a hailstorm of negative reaction and wild accusations because of what I’m about to say. I think the new California law temporarily erasing the statute of limitation on child sexual abuse is a bad law. I would have voted against it.

The new statute I am talking about passed both houses of the California legislature a few weeks ago. It is now on the governor’s desk, waiting for his signature to become law. The law is clearly aimed at the Catholic Church. It exempts public schools and and other government institutions, as well as the child abusers themselves. It also repeats something California has already done once, which is to rewind an old law and essentially erase the statute of limitations on old sexual abuse cases.

Here are the reasons why I think this is a bad law.

Rewind

1. It is a dangerous practice to make people retroactively guilty. Change the law going forward, if you want. But don’t go back and re-write laws in the past to find people guilty of things they wouldn’t be guilty of under the laws as they were at the time they committed the crime. The situation in the new California law is a shade of that practice (which is unconstitutional on its face) since what we are talking about is re-winding the statutory time in which a crime can be punished, in this case, by civil lawsuit.

Let’s say, as a for instance, that the statute of limitations on rape is 5 years. Let’s also say that it comes to light that a general in the armed forces participated in the gang rape of several enlisted personnel back when he was a lieutenant. This was decades ago, but he even though he hasn’t participated in any more rapes (that we know of) he is now turning a blind eye to other rapes in the ranks.

One way to get at this monster would be to rewind the statute of limitations (say we do it for one year to give prosecutors a window to get at him) and extend the time rapists can be brought to justice to 40 years instead of 5.

Problem solved, right?

No.

Problem created.

What we would be doing is setting a precedent of selective justice, and worse, selective law-making, to get at one man. We would be declaring open season on anyone that prosecutors and legislative bodies of the future want to take a crack at retroactively. It might not be such an undoubted monster the next time. It could be anybody, including anybody that the special interests who actually write most legislation want to get at.

We could end up with powerful businesses retroactively suing their competitors out of existence with this practice. In fact, given that most legislation is about helping businesses destroy their competition with laws they write themselves and then get their bought and paid for legislators to pass for them, you can bet it would and will happen.

ArrowsX

2. The California law is, as I mention above, aimed at one group of people, in this case the Catholic Church. The practice of writing laws to get at one group of people, no matter who they are, is egregious.

Here’s why.

When we’re going after a group of people most folks think of as the boogeyman, in this case, a huge Church that not only tolerated, but enabled child abuse for a long period of time, it’s easy to decide that any way we can make them suffer is a good way. However, as always happens with these intrusions of the irrational in lawmaking, what begins as a seemingly justifiable exception, soon becomes the unjustifiable norm.

If the legislature can do this once, as they already have in California, then the legislature can do it again. And as with most things, the more they do it, the less outrageous it seems and the smaller the reason required to do it again.

Pretty soon, we’ve got major corporations writing up legislation that specifically limits their competitors or uses the government to control their customers, and doing it by name.

This is actually just the next step in special interest legislation. Special interest legislation of this type takes up almost all of legislative time right now. This is a bit off the subject, but if special interest legislation was eliminated, most legislative bodies in this country could finish their work in about a quarter of the time they spend today.

Courtroom

3. There are better ways to punish long-term miscreants than retroactive laws. Legislators do have to put on their little thinking caps. But it can certainly be done. What they have to do is pass a law that begins when it is signed by the governor and goes forward and that is written for everyone.

Of course, I am guessing that California already has all the laws it needs to deal with child sexual abuse in institutional settings. Those laws just weren’t utilized at the right time. Outrage that child sexual abusers escaped punishment because the powerful abused their power is what fuels the desire to use lawsuits to punish the child abuse enablers now.

But civil lawsuits are a poor way to deal with this problem. People who sexually abuse children should go to prison. I am not talking here about Catholic priests. I am talking about all child sexual abusers. I’ve had some dealings with this in Oklahoma and I can tell you that far too many of these guys skate. There are lots of reasons, but judges who, like Dr Richard Dawkins, just can’t seem to see the harm, are among the primary causes.

I believe that sexual abuse by a priest, or any clergy, is especially egregious simply because the trust people place in their clergy puts them in a vulnerable position vis a vis the clergy. People confide things in their priests that they don’t tell anyone else in the world. This makes them deeply vulnerable to this priest. Sexual abuse, especially of a child, is a horrific betrayal of this trust.

At the same time, I am becoming concerned that we are developing a legal and social double standard about child sexual abuse. Dr Dawkins, as a for instance, engaged in grand-standing talk about arresting the Pope because of the Church’s child sexual abuse scandals. Then, he turned around and tried to take a wink-wink attitude toward child sexual abuse in other contexts.

Dr Dawkins isn’t alone in this behavior.

I agree with giving longer sentences to those in a position of trust, such as counselors, clergy and doctors, who violate that trust in this way. I think that, considering the vulnerability of their patients and parishioners to them, it is appropriate to hold them to a higher standard. However, those higher standards should be statutorily defined, not handed down willy-nilly as vengeance.

I do not agree with a wholesale two-tiered system of justice which singles out Catholic clergy for higher sentences simply because they are Catholic clergy. That is discriminatory on its face.

I think the new California statute is a bad law that sets a terrible precedent. It’s just a matter of time before that precedent ends up being used and abused in ways that none of the backers of the law foresaw or intended.

The Hydra-Headed DOMA Decision and Bankrupting the States

We all deserve the freedom to marry

Michigan state law allows health benefits for school employees and their spouses.

It does not allow health benefits for domestic partners.

US District Judge David Lawson struck down this law on June 28. He based his decision on the recent Supreme Court decision overturning the first half of the federal Defense of Marriage Act.

State law determines what benefits public school employees will receive. These benefits are paid for out of the state coffers. One would think that this would be a state’s rights issue, determined by the state’s legal definition of what constitutes a spouse.

However, the recent Supreme Court decision has allowed the judge to overstep state definitions of marriage and require the State of Michigan to extend health care benefits to domestic partners.

According to CNA:

U.S. District Judge David Lawson’s June 28 ruling said it can “never be a legitimate purpose” to deny health benefits to the same-sex partners of public employees. He said the plaintiffs who lost benefits or had to pay for more expensive private health insurance have a “plausible claim” that the law violates the U.S. Constitution.

The 2011 law ended same-sex partner benefits for a few school districts, the counties of Ingham and Washtenaw and the cities of Ann Arbor, East Lansing and Kalamazoo, the Associated Press said.

Defenders of the law said it was passed in the spirit of a 2004 constitutional amendment that defined marriage as a union of a man and a woman. That amendment won 58 percent of the vote.

This, of course, raises other questions for Michigan, and for all states. The Supreme Court decision essentially overturned state definitions of marriage as between one man and one woman, at least for all practical purposes. The Michigan case is just one small example of how far-reaching this Supreme Court decision actually is.

Money down the drain

It will require a change in how the states pay for things such as employee benefits and entitlements. This district court decision pushes the envelope past legal marriages and into the area of domestic partnerships. Since our laws are required to be equal in their applications, that means that it does not just apply to domestic partnerships between same-sex couples, but between virtually anyone.

I realize that is not what the judge specifically addressed in his ruling, but that is the impact of the ruling. It may take a few court cases to make the point, but if this ruling stands up under appeal, that will be its effect in the long term.

The question immediately arises: How are the states going to pay for this? The answer, I’m pretty sure, is that they can’t. Oklahoma is actually in better financial condition than many states, and we would be flummoxed trying to provide benefits for every live-in “domestic partnership.” Of course, the federal government might decide to step in with huge subsidies for these benefits, but that raises the ugly question of how they are going to pay for it.

The only financially responsible answer that provides equal protection under the law that I can see is to either change state laws to redefine marriage to include gay couples and then wait for the next big trendy change allowing polygamy, followed by benefits to cohabiting heterosexuals, OR, do away with benefits for everybody. That is the effect of the Supreme Court’s decision on DOMA on the states.

I have no doubt that in the long run — and I’m talking about years, maybe a decade, but not much longer — where we will end up is doing away with benefits for everyone. It will be a simple financial imperative.

Welcome to the brave new world of marriage is whatever we say it is today.


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